Citation Nr: 0522196
Decision Date: 08/15/05 Archive Date: 08/25/05
DOCKET NO. 02-15 196 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
residuals of a back injury.
3. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
residuals of a right shoulder injury.
ATTORNEY FOR THE BOARD
C. Dillon
INTRODUCTION
The veteran served on active duty from August 1972 to August
1974.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from an April 2002 rating decision and a
September 2002 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO), in Houston, Texas. In
April 2002, the RO denied the applications to reopen the
claims of entitlement to service connection for injury
residuals to the back and right shoulder. In September 2002,
the RO denied the claim of entitlement to service connection
for PTSD.
In November 2003, the Board remanded these matters for
additional development, and the case has returned for further
appellate review. Also in November 2003, the Board referred
to the RO the issue of entitlement to service connection for
a right knee disorder. (See Veteran's Statement, received
October 21, 2002). As the right knee claim has not been
adjudicated, it is again referred to the RO for appropriate
action.
FINDINGS OF FACT
1. There is no competent evidence the veteran currently
suffers from PTSD. The veteran was not in combat.
2. In an April 1977 rating decision, the RO denied the
claims of entitlement to service connection for residuals of
injuries to the veteran's back and right shoulder, and he was
notified the same month of these decisions and given his
appellate rights and procedures, but he did not appeal the
decisions.
3. The evidence presented since the April 1977 rating
decision was not previously submitted, relates to an
unestablished fact necessary to substantiate the claims, and
raises a reasonable possibility of substantiating the claims.
4. The veteran's current osteoarthritis did not have its
onset during active service and did not result from disease
or injury in service, and the veteran did not suffer from
arthritis within one year from date of separation.
CONCLUSIONS OF LAW
1. Post-traumatic stress disorder was not incurred in or
aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. §§ 3.303, 3.304(f) (2004).
2. The April 1977 rating decision denying service connection
for residuals of a back injury and residuals of a right
shoulder injury is final. 38 U.S.C.A. §§ 5108, 7105 (West
2002); 38 C.F.R. § 3.156 (2004).
3. The evidence received subsequent to the April 1977 RO
rating decision is new and material, and the claims of
service connection for residuals of a back injury and
residuals of a right shoulder injury are reopened. 38
U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2004).
4. Residuals of a back injury were not incurred in or
aggravated by service and arthritis may not be presumed to
have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).
5. Residuals of a right shoulder injury were not incurred in
or aggravated by service and arthritis may not be presumed to
have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to notify and assist
VA has satisfied its duty to notify and assist with respect
to the claims to reopen because the record contains new and
material evidence sufficient to reopen the claims. See
Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993) (no risk of
prejudice to the veteran).
VA has a duty to notify claimants for VA benefits of
information necessary to submit to complete and support a
claim and to assist claimants in the development of evidence.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West
2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2004). In this case, VA's duties have been fulfilled to the
extent possible.
Specifically, VA must inform the claimant of any information
and evidence not of record (1) that is necessary to
substantiate the claim, (2) that VA will seek to provide, and
(3) that the claimant is expected to provide. In what can be
considered a fourth element of the requisite notice, VA must
also request that the claimant provide any evidence in the
claimant's possession that pertains to the claim. 38 C.F.R.
§ 3.159(b)(1); see 38 U.S.C.A. § 5103A(g).
VA satisfied the duty to notify by means of letters to the
veteran from the RO dated in July 2002 and April 2004. He
was told of what was required to substantiate his service
connection claims and of his and VA's respective duties, and
was asked to submit evidence and/or information to the RO.
The requisite notice letters were provided to the veteran
after the initial adjudication of the back and right shoulder
claims. Any defect, however, with respect to the timing of
the notice was nonprejudicial. There is no indication that
the outcome of the case has been affected, and all evidence
received after issuance of the notice letters was afforded
proper subsequent VA process, considered by the RO in
supplemental statements of the case dated in October 2002,
February 2003, and June 2005. Additionally, the veteran was
provided a meaningful opportunity to participate effectively
in the processing of his claims. See Mayfield v. Nicholson,
No. 02-1077 (U.S. Vet. App. April 14, 2005).
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
Assistance shall also include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.
38 U.S.C.A. § 5103A(a), (d); 38 C.F.R. § 3.159(c), (d).
The Board remanded this case in November 2003 in an attempt
to obtain outstanding records. The claims file now contains
all available, identified records pertinent to the claims,
including the veteran's service medical records and medical
records from the Texas Department of Criminal Justice (TDCJ).
Sheppard Air Force Base Regional Hospital and Ft. Polk U.S.
Army Hospital stated that no records were found for the
veteran for the dates he alleged treatment at these
facilities. The Social Security Administration and Jasper
Memorial Hospital also indicated they have no available
records for the veteran. The RO made multiple records
requests to Newton Family Clinic and Dickerson Hospital, but
these facilities did not reply. The veteran reported that
Newton Memorial Hospital had closed, and he did not provide a
current address for Lufkin Memorial Hospital or a release of
information for any worker's compensation records.
VA examination is not indicated for PTSD because there is no
evidence the veteran currently suffers from this disability.
VA examination is not indicated for the back or right
shoulder because there is no evidence the veteran suffered an
event, injury or disease in service associated with these
body parts. See 38 C.F.R. § 3.159(c); Wells v. Principi, 326
F.3d 1381 (Fed. Cir. 2003); Charles v. Principi, 16 Vet. App.
370 (2002). Regardless, an initial VA examination was
conducted in 1977.
II. PTSD
The existence of a current disability is the cornerstone of a
claim for VA disability compensation. See Degmetich v.
Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the
Court's interpretation of sections 1110 and 1131 of the
statute as requiring the existence of a present disability
for VA compensation purposes cannot be considered arbitrary
and therefore the decision based on that interpretation must
be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed.
Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).
38 C.F.R. § 3.304(f) requires medical evidence diagnosing
PTSD in accordance with 38 C.F.R. § 4.125(a), which provides
that the diagnosis of a mental disorder must conform to the
Diagnostic and Statistical Manual of Mental Disorders, 4th
edition (DSM-IV) and must be supported by findings on
examination.
Neither the Board nor the veteran is competent to supplement
the record with unsubstantiated medical conclusions. Colvin
v. Derwinski, 1 Vet. App. 171, 175 (1991); Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). In this case, the
record does not contain a diagnosis of PTSD. In fact, the
record does not contain any mental health treatment records
or mental examination results. In the absence of any
competent evidence of current PTSD, the Board must conclude
the veteran does not currently suffer from that disability.
The evidence in this case is not so evenly balanced so as to
allow application of the benefit-of-the-doubt rule as
required by law and VA regulations. 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102. The preponderance is against the
veteran's claim, and it must be denied.
In reaching this determination, the Board notes that during
service, the veteran complained of nervousness of two years
duration in 1973. An impression of possible anxiety reaction
was entered in July 1973. However, at separation, the
psychiatric examination was normal and the VA examination in
1977 disclosed no pertinent history. The Board again notes
that there is no post-service diagnosis of any psychiatric
impairment.
III. Back and right shoulder
A. New and material evidence
In April 1977, the RO denied entitlement to service
connection for residuals of back and right shoulder injuries
and informed him of appellate rights. In the absence of an
appeal, the decision is final. 38 U.S.C.A. §§ 5108, 7105.
The veteran sought to reopen his claim in December 2001.
To reopen a claim which has been previously denied and which
is final, the claimant must present new and material
evidence. 38 U.S.C.A. § 5108. New evidence means existing
evidence not previously submitted to agency decisionmakers.
38 C.F.R. § 3.156(a). Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. Id.
The RO's April 1977 rating decision shows that the RO in part
denied service connection on the basis that VA examination
the same month established no objective findings of a back or
right shoulder disability, i.e., the current disability
requirement had not been met.
The evidence received subsequent to the April 1977 RO rating
decision is presumed credible for the purposes of reopening
the veteran's claim unless it is inherently false or untrue,
or it is beyond the competence of the person making the
assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The evidence presented since the RO's April 1977 rating
decision includes medical records from the TDCJ. These
records include the veteran's complaints of back pain and
right shoulder pain, as well as a diagnosis of
osteoarthritis. Such evidence, presumed credible, provides
competent evidence of a current disability, and this was
lacking at the time of the April 1977 rating decision.
Consequently, the record contains new and material evidence
to reopen the claims.
B. Service connection
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. §§
3.303(a), 3.304. To prevail on the issue of service
connection there must be medical evidence of a current
disability; medical evidence, or in certain circumstances,
lay evidence of in-service occurrence or aggravation of a
disease or injury; and evidence of a nexus between an in-
service injury or disease and the current disability. See
Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond
v. West, 12 Vet App. 341, 346 (1999).
In determining whether service connection is warranted for a
disability, the Board must assess the credibility and weight
of all the evidence, including the medical evidence, to
determine its probative value, accounting for evidence that
it finds to be persuasive or unpersuasive, and providing
reasons for rejecting any evidence favorable to the
appellant. Masors v. Derwinski, 2 Vet. App. 181 (1992).
As noted above, the medical evidence from the TDCJ
demonstrates the veteran suffers from arthritis involving the
back and right shoulder. The evidentiary record, however,
does not show that his arthritis is related to service.
The veteran asserts that he sustained orthopedic injury in
service as a result of falling from an elevated height. The
service records, however, are absent any documentation of
such an event or any resulting treatment suggesting such an
event occurred. He contends that he was treated for his fall
(or falls) in service at Polk Army Hospital and Sheppard Air
Force Base Regional Hospital, but these facilities have no
record of treating the veteran.
The service medical records reflect that if he indeed
experienced such a fall, it resulted in no residual
impairment. A November 1973 physical profile report shows no
limitation of the upper or lower extremities; physical
capacity was considered limited at that time due to a
subtotal thyrotoxicosis. In April 1974, there were no
limitations of the veteran's upper or lower extremities or
his overall physical capacity. The August 1974 separation
examination discloses that all systems were deemed normal on
clinical evaluation. Three days after the separation
examination, the veteran certified that there had been no
change in his medical condition with the exception of a
throat problem.
The post-service evidence does not tend to show that the
veteran's arthritis is related to service, as it suggests it
began many years after service.
The April 1977 VA examiner diagnosed a "history of sprain,
possibly of the acromioclavicular joint, right shoulder, in a
fall, December, 1972" and "history of muscular ligamentus
sprain, lumbosacral spine in two different falls, October,
1972 and December, 1972." The Board accords no probative
value the April 1977 VA examiner's diagnoses because the
Board is not bound to accept medical opinions based on a
history supplied by the veteran where that history is
unsupported by the medical evidence. LeShore v. Brown, 8
Vet. App. 406 (1995); Black v. Brown, 5 Vet. App. 177 (1993);
Swann v. Brown, 5 Vet. App. 229 (1993); Pound v. West, 12
Vet. App. 341 (1999).
Despite VA's attempts to obtain evidence dated in the years
immediately after service, the earliest dated post-service
medical evidence of arthritis is that from the TDCJ, which
notes arthritis was "first observed" in April 1989,
approximately 15 years after service separation.
Service connection for arthritis may be granted if manifest
within 1 year of separation from service. A review of the
record reflects that the upper extremities and spine were
normal at separation. In addition, when examined in 1977,
the x-ray views were interpreted as showing no obvious or
significant boney abnormality. Furthermore, the examiner
determined that the examination was normal. Based upon these
findings, the Board concludes that arthritis was not manifest
during service or within 1 year of separation from service.
The veteran's opinion regarding the etiology of his arthritis
has no probative value. Again, neither the Board nor the
veteran is competent to supplement the record with
unsubstantiated medical conclusions. Colvin v. Derwinski, 1
Vet. App. 171, 175 (1991); Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992). The record does not contain a competent
opinion linking the veteran's current back and right shoulder
disability to service, and the competent evidence of record
does not demonstrate that these disabilities are related to
service.
The evidence in this case is not so evenly balanced so as to
allow application of the benefit-of-the-doubt rule as
required by law and VA regulations. 38 U.S.C.A. § 5107(b);
38 C.F.R. §§ 3.102, 4.3. The preponderance is against the
veteran's claims, and they must be denied.
ORDER
Service connection for PTSD is denied.
The applications to reopen the claims of service connection
for residuals of a back injury and residuals of a right
shoulder injury are granted.
Service connection for residuals of a back injury is denied.
Service connection for residuals of a right shoulder injury
is denied.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs